Fox's Attempt To Scandalize Routine Use Of Executive Privilege Shows Contempt For Reality

Following the Obama administration's assertion of executive privilege over some documents related to the ATF's Operation Fast and Furious, Fox News has rushed to label the move improper, or evidence that President Obama himself lied about involvement with the failed operation. In fact, the documents in question deal with the administration's response to the operation after it became public, an area with which the administration has previously acknowledged the White House participated, and such claims of executive privilege are well in line with historical precedent.

Fox's Jarrett: Either "Executive Privilege Does Not Apply" Or President Obama Is "Not Telling The Truth." On the June 20 edition of Fox News' Happening Now, anchor Gregg Jarrett stated that if Obama "was not involved" in Operation Fast and Furious "then executive privilege does not apply," and if he was involved then previous administration statements to the contrary are false:

JARRETT: If the president was not involved then executive privilege does not apply. If the president was involved, then three things, either Holder was not telling the truth in front of Congress, and or the White House was not telling the truth when it denied the White House and the president were involved, and the president himself may have not been telling the truth when he made statements, including in an interview on camera with Univision, that he knew nothing about it and was not involved. So how big is this?

BILL KRISTOL, FOX NEWS CONTRIBUTOR: Well we will have to see. But I would say this. There is only one person who can use executive privilege, I believe, and that is the President of the United States who is in charge of the executive branch. [Fox News, Happening Now, 6/20/12]

Speaker Boehner's Spokesman On White House: "Were They Lying" In The Past "Or Are They Now Bending The Law To Hide The Truth?" In a June 20 statement, a spokesman for House Speaker John Boehner (R-OH) said:

Until now, everyone believed that the decisions regarding 'Fast and Furious' were confined to the Department of Justice. The White House decision to invoke executive privilege implies that White House officials were either involved in the 'Fast and Furious' operation or the cover-up that followed. The Administration has always insisted that wasn't the case. Were they lying, or are they now bending the law to hide the truth? [Talking Points Memo, 6/20/12]

Sen. Grassley: "How Can The President Assert Executive Privilege If There Was No White House Involvement?" From a June 20 statement by Sen. Chuck Grassley (R-IA):

The assertion of executive privilege raises monumental questions. How can the President assert executive privilege if there was no White House involvement? How can the President exert executive privilege over documents he's supposedly never seen? Is something very big being hidden to go to this extreme? The contempt citation is an important procedural mechanism in our system of checks and balances. The questions from Congress go to determining what happened in a disastrous government program for accountability and so that it's never repeated again. [Talking Points Memo, 6/20/12]

Obama Stated Neither He, Nor Holder, Authorized Fast And Furious. In the March 2011 interview with Univision referenced by Jarrett, Obama stated that neither he nor Holder authorized the operation and that he had not been aware of it before it became public:

JORGE RAMOS, UNIVISION HOST: The Mexican government complains that they were not informed about the Fast and Furious operation. Did you authorize this operation and was President Calderón properly informed about it?

BARACK OBAMA: Well first of all, I did not authorize it. Eric Holder, the attorney general, did not authorize it. He has been very clear that our policy is to catch gun runners and put them into jail. So, what he's done is he's assigned an IG, an inspector general, to investigate what exactly happened here.

RAMOS: So who authorized it?

OBAMA: Well we don't have all the facts. That's why the IG is in business.

RAMOS: And you were not even informed about it?

OBAMA: Absolutely not. This is a pretty big government. The United States government. I've got a lot of moving parts. But I want to be very clear and I spoke to President Calderón when he came to visit just a few weeks ago. Our policy is to ramp up the interdiction of guns flowing south because that's contributing to some of the security problems that are taking place in Mexico. [CBSNews.com, 3/23/11]

DOJ Asked Obama To Exert Executive Privilege Only Over Documents Created After Fast And Furious Was Terminated In January 2011. From a June 19, 2012 letter from Holder to Obama:

The [House Oversight] Committee has made clear that its contempt resolution will be limited to internal Department [of Justice] "documents from after February 4, 2011 related to the Department's response to Congress." Letter for Eric H. Holder, Jr., Attorney General, from Darrell E. Issa, Chairman, Committee on Oversight and Government Reform, U.S. House of Representatives at 1-2 (June 13, 2012) ("Chairman's Letter"). I am asking you to assert executive privilege over these documents. They were not generated in the course of the conduct of Fast and Furious. Instead, they were created after the investigative tactics at issue in that operation had terminated and in the course of the Department's deliberative process concerning how to respond to congressional and related media inquiries into that operation. [Department of Justice via CNN, 6/19/12]

Fox News White House Correspondent Ed Henry: Executive Privilege Assertion Does Not Contradict Any Administration Statements On Fast And Furious. In a later segment on Happening Now, Fox's chief White House correspondent Ed Henry explained how "nothing that has happened this morning" contradicts previous administration statements:

JARRETT: You know Ed, we did a little research this morning and there were several statements coming from the White House over the course of the last year in which they have categorically denied White House involvement in Fast and Furious, the president's involvement in it, and in fact we looked up a Univision interview in which the president also said he knew nothing about it, no involvement, zero. Now this. What's the sense there?

HENRY: Well there is an important distinction right there to answer your question first, then I'll take you inside the deliberations here at the White House and how this came to be. When the White House has been saying for the last year, the president, his top aides here at the White House, have not been involved in Fast and Furious.Nothing that has happened this morning necessarily contradicts that. What they were referring to is whether the president himself was involved in the gunrunning operation, in approving it, involved in that investigation itself. What they are asserting this morning on executive privilege is something different. Is that on the internal deliberations within the Obama administration, about how to deal with the fallout from that scandal that you mentioned over the last year or so as it's been bubbling. The internal deliberations. They are exerting executive privilege about the conversations between Justice Department officials about, maybe, Justice Department officials and White House aides. [Fox News, Happening Now, 6/20/12]

Holder Has Already Publicly Stated That He Worked With White House Counsel's Office In Response To Media And Congressional Inquiries Into Fast And Furious. From Holder's testimony before the House Judiciary Committee on June 7, 2012:

REP. RANDY FORBES, (R-VA): Have you ever had any consultation with the White House, or anyone with the campaign, or with Mr. Axelrod about messaging related to Fast and Furious?

HOLDER: About messaging with regard to Fast and Furious?

FORBES: Yes. Comments that were made. How you were going to message it. Any of that.

HOLDER: Well we have certainly talked about the way in which we could deal with the interaction between the Justice Department and Congress about ways in which I would -- we would --

FORBES: But nothing about press messaging at all?

HOLDER: Well I mean in terms of trying to get a message out that was consistent with the facts and make sure that it was done in an appropriate way, I've had conversations like that with people in the White House counsel office. [House Judiciary Committee hearing via C-SPAN, 6/7/12]

Past Administrations Have Asserted Executive Privilege Over Material Produced Outside Of The White House

Former Bush Attorney General Michael Mukasey On Environmental Protection Agency Documents: "The Privilege May Be Invoked To Protect Executive Branch Deliberations Against Congressional Subpoenas." From a letter authored by then-Attorney General Michael Mukasey to President George W. Bush:

The doctrine of executive privilege also encompasses Executive Branch deliberative communications that do not implicate presidential decisionmaking. As the Supreme Court has explained, the privilege recognizes "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." Nixon, 418 U.S. at 705. Based on this principle, the Justice Department -- under Administrations of both political parties -- has concluded repeatedly that the privilege may be invoked to protect Executive Branch deliberations against congressional subpoenas. See, e.g., Letter for the President from John Ashcroft, Attorney General, Re: Assertion of Executive Privilege with Respect to Prosecutorial Documents at 2 (Dec. 10, 2001) (available at http://www.usdoj.gov/olc/executiveprivilege.htm) ("The Constitution clearly gives the President the power to protect the confidentiality of executive branch deliberations."); Executive Privilege With Respect to Clemency Decision, 23 Op. O.L.C. at 2 (explaining that executive privilege extends to deliberative communications within the Executive Branch); Assertion of Executive Privilege in Response to a Congressional Subpoena, 5 Op. O.L.C. 27, 30 (1981) (opinion of Attorney General William French Smith) (assertion of executive privilege to protect deliberative materials held by the Department of Interior). [Department of Justice, 6/19/08]

Bush Administration Asserted Executive Privilege Over Justice Department Documents. From a December 14, 2001 article published by the New York Times:

President Bush invoked executive privilege today for the first time in his administration to block a Congressional committee trying to review documents about a decades-long scandal involving F.B.I. misuse of mob informants in Boston. His order also denied the committee access to internal Justice Department deliberations about President Bill Clinton's fund-raising tactics. [The New York Times, 12/14/01]

Executive Privilege Has Been Asserted By Every Administration Since At Least 1980. From a June 20 Washington Post article listing the number of times administrations have invoked the privilege:

President Barack Obama: 1 President George W. Bush: 6 President Bill Clinton: 14 President George H.W. Bush: 1 President Ronald Reagan: 3

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